1977 (5) TMI 83 - SC - Indian Laws

Summary

Issues Involved:
1. Seniority in service between promotees and direct recruits.
2. Validity of rules framed by the Maharashtra and Gujarat governments.
3. Application and interpretation of the quota system for recruitment.
4. Constitutionality of Rule 8(iii) of the 1960 Rules and Rule 33 of the 1970 Rules.
5. Retrospective effect of executive instructions.
6. Compliance with the Bombay Reorganisation Act, 1960.

Issue-wise Detailed Analysis:

1. Seniority in Service Between Promotees and Direct Recruits:
The primary issue in these appeals is the determination of seniority between promotees and direct recruits to the posts of Deputy Engineers. The promotees argued that their seniority should be based on the length of continuous service as Deputy Engineers, while the direct recruits contended that seniority should be determined from the date of their initial appointment. The court noted that the disparity was glaring, with direct recruits being treated preferentially, even counting their probationary period towards seniority. The promotees, on the other hand, had to wait for confirmation, which was often delayed despite available vacancies.

2. Validity of Rules Framed by the Maharashtra and Gujarat Governments:
The court examined various rules and resolutions issued by the Maharashtra and Gujarat governments, including the 1939, 1941, 1960, 1963, and 1970 rules. It was established that except for the 1939 rules and the 1965 Gujarat notification, the rest were executive instructions without statutory force. The court held that these executive instructions could not have retrospective effect.

3. Application and Interpretation of the Quota System for Recruitment:
The 1960 rules prescribed a 75:25 ratio for recruitment of direct recruits and promotees. The court held that this quota system applied only to initial appointments and not to confirmations. It was emphasized that once appointed, the quota rule ceased to apply, and confirmations should not be restricted by the initial quota.

4. Constitutionality of Rule 8(iii) of the 1960 Rules and Rule 33 of the 1970 Rules:
Rule 8(iii) of the 1960 rules and Rule 33 of the 1970 rules were challenged for being discriminatory. The court found that these rules were unconstitutional as they left seniority to depend on the fortuitous circumstance of confirmation, which was often delayed arbitrarily. The court struck down these rules, emphasizing that continuous officiation in a non-fortuitous vacancy should be recognized for determining seniority.

5. Retrospective Effect of Executive Instructions:
The court clarified that executive instructions, unlike statutory rules, cannot have retrospective effect. This distinction was crucial in determining the applicability of various rules and resolutions over time.

6. Compliance with the Bombay Reorganisation Act, 1960:
The court addressed the argument that the rules violated the Bombay Reorganisation Act, 1960, which required Central Government approval for any disadvantageous variation in service conditions. The court found no violation, as the rules did not alter the conditions of service to the disadvantage of Deputy Engineers.

Conclusion:
The court allowed the appeal by the promotees from Maharashtra, setting aside the Bombay High Court's judgment. It dismissed the appeals by direct recruits from Gujarat, confirming the Gujarat High Court's judgment. The court partially allowed the cross-appeals from Gujarat, providing relief to the promotees. The court emphasized the need for fair and equitable rules of seniority, recognizing continuous officiation in non-fortuitous vacancies, and struck down discriminatory rules that left seniority to depend on arbitrary confirmation.